Rendering Structured Finance Opinions of Counsel: Substantive Consolidation, Authority to File Bankruptcy and More

Navigating Assumptions, Qualifications, Limitations and Use of Letters; Reducing Risks for Opinion Givers

Recording of a 90-minute CLE webinar with Q&A

Conducted on Tuesday, July 11, 2017
Recorded event now available

This CLE webinar will provide commercial finance counsel with a review of the use of opinion letters in structured finance transactions, explain various elements of the opinions, with particular emphasis on the non-consolidation opinions, and outline best practices for the opinion giver to minimize risks.


The key concept for structured finance is the isolation of assets in a “bankruptcy remote” special purpose vehicle (SPV), which protects against borrower insolvency and the assets against credit risk of other entities, including the former owner of the assets. These transactions frequently use LLCs and statutory trusts, particularly Delaware Statutory Trusts.

Legal separation of SPVs is achieved by two structuring techniques: true sales and the “bankruptcy remote” nature of the SPV. Opinions of counsel in structured finance transactions address the legal separateness of the SPV from affiliated entities and the legal isolation of the SPV’s assets from affiliated entities and their creditors.

A non-consolidation opinion addresses, but does not establish, the separateness of the SPV. Rather, the opinion gives the recipient assurance that counsel for the originator and the SPV has considered all issues needed to render the opinion.

Listen as our authoritative panel of practitioners discusses drafting opinions of counsel in structured finance transactions with particular emphasis on rendering non-consolidation opinions, and best practices for the opinion giver to minimize risks.


  1. Valid formation of entity
  2. Authorization of transaction by entity
  3. Substantive consolidation opinions
  4. Authority to file for bankruptcy


The panel will review these and other key issues:

  • How should the opinion giver address the issue of bankruptcy remoteness—what are the limitations, assumptions and qualifications that the opinion giver should consider?
  • What key issues should the opinion giver address in a non-consolidation opinion?
  • What are the bankruptcy risks for parties providing financing to a structured finance SPV?


Scott J. Gordon, Partner
Kirkland & Ellis, New York

Mr. Gordon is the leader of the firm’s Derivatives Practice and a member of the Asset Finance and Securitization Practice. He is a leading counsel to end users, representing clients ranging from Fortune 500 companies to many of the world's preeminent private equity funds and their portfolio companies in connection with structuring, negotiating and documenting interest rate, currency, commodity, credit and equity derivative transactions. 

Michelle P. Quinn, Partner
Berger Harris, Wilmington, Del.

Ms. Quinn's practice focuses primarily on rendering advice as to matters of Delaware law relating to partnerships and limited liability companies. She has extensive experience in rendering advice and legal opinions in a wide variety of transactions involving Delaware partnerships and limited liability companies, including investment fund transactions, joint venture transactions and structured finance transactions. Her work also includes rendering advice with respect to mergers, conversions and other structural changes involving partnerships and limited liability companies, as well as analyzing fiduciary duty and contractual interpretation issues.


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Banking & Finance Law Advisory Board

Irving C. Apar


Thompson Hine

Mark N. Berman

Adjunct Professor

Northeastern University

Willa Cohen Bruckner


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Lawrence Kaplan

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Paul Hastings

Kevin Petrasic


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Laura D. Richman


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Robert M. Stern


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